As there is no doubt that the defendant has used this name openly and persistently the complainant has a perfect cause of action against him either in law or equity, as he may elect. The same is true if the view be taken that the language of the contract is so ambiguous and doubtful as to require the construction of a court of equity. In no view of the situation can the complainant be permitted to ignore this agreement, cast it aside and proceed upon the theory that the defendant has made "improper, wrongful, wicked and fraudulent use of the name 'Faber.'" The decree specifically finds that the defendant "has been guilty of fraud in unfair competition in trade with the house of A. W. Faber." These allegations and this finding are not, we think, justified by the proof. The contract of 1898 is a valid subsisting agreement. The most favorable view which the complainant can expect is that the defendant has mistaken its import, misinterpreted its provision and in this way has violated its stipulations. But one may not be convicted of fraud because he misinterprets an instrument couched in obscure and misleading language. It is enough that the defendant has, in all essential particulars, complied with the contract as he understood it.

The decree is reversed and the cause is remanded to the Circuit Court with instructions to dismiss the bill with costs.

WALLACE, Circuit Judge. I do not think the agreement of March 16, 1898, would be an obstacle to the present action if the defendant had made any unwarranted use of his name for the purpose of unfair competition with the complainant, but am in favor of reversing the decree because the proofs do not show that the defendant has done so. By that agreement, according to its only rational construction, it was settled between the parties that the initial "E." should stand for the full name "Eberhard" when used in the lead pencil business by the latter. Irrespective of the effect of that agreement, there was no unfair or fraudulent use by defendant of the initial.

UNITED STATES v. FARRAR.

(Circuit Court of Appeals, Second Circuit. May 24, 1905.)

No. 236.

PRISONS-ALLOWANCE FOR GOOD TIME-FEDERAL STATUTE.

Act June 21, 1902, c. 1140, 32 Stat. 397 [U. S. Comp. St. Supp. 1903, p. 448], provides in section 1 that each prisoner "who has been or shall hereafter be" convicted of any offense against the United States, and imprisoned therefor, shall be entitled to an allowance of good time, as therein specified. Section 3 provides that the act shall apply "only to sentences imposed by courts subsequent to the time when this act takes effect." Held that, the two provisions being in direct conflict, the third section, being the later, and also the more specific, must govern, and that the act does not apply to prisoners sentenced before its passage.

[Ed. Note. For cases in point, see vol. 40, Cent. Dig. Prisons, § 26.]

Appeal from the District Court of the United States for the District of Vermont.

For opinion below, see 133 Fed. 254.

James L. Martin, for the United States.

L. C. Moody and John H. Seuter, for appellee.

Before WALLACE, TOWNSEND, and COXE, Circuit Judges.

WALLACE, Circuit Judge. This appeal from an order in habeas corpus discharging the relator presents a question of the proper construction of the act of Congress of June 21, 1902, c. 1140, 32 Stat. 397 [U. S. Comp. St. Supp. 1903, p. 448], entitled "An act to regulate commutation for good conduct for United States prisoners.

May 19, 1900, the relator was convicted of a criminal offense against the laws of the United States, and sentenced to imprisonment in the House of Correction at Rutland, Vt., and was in confinement in execution of that sentence when the act of Congress took If the act was applicable to prisoners who had been convicted and were in confinement at the time when it took effect, the commutation for good conduct therein specified would have entitled the relator to be discharged. If the act was not applicable to such prisoners, the court below erred.

The act, so far as it is material, reads as follows:

"Section 1. That each prisoner who has been or shall hereafter be convicted of any offence against the laws of the United States, and is confined, in execution of the judgment or sentence upon any such conviction, for a definite term, other than for life, * * whose record of conduct shows that he has faithfully observed all the rules, and has not been subjected to punishment, shall be entitled to a deduction from the term of his sentence, to be estimated as follows: Commencing on the first day of his arrival at the penitentiary, prison or jail. [The section then specifies different commutations regulated by the term of sentence.]"

"Sec. 2. That in the case of convicts in any United States penitentiary the Attorney General shall have the power to restore to any such convict, who has heretofore or who may hereafter forfeit any good time by violating any existing law or prison regulation, such portion of lost good time as may be proper in his judgment, upon recommendations and evidence submitted to him by the warden in charge.

"Sec. 3. That this act shall take effect and be in force from and after thirty days from the date of its approval, and shall apply only to sentences imposed by courts subsequent to the time that this act takes effect, and hereinbefore provided. Prisoners serving under any sentence imposed prior to such time shall be entitled to and receive commutation heretofore allowed under existing laws. Such existing laws are hereby repealed as to all sentences imposed subsequent to the time when this act takes effect."

The repugnancy between the first and third sections of the act is plain, and utterly irreconcilable. The court below based its opinion upon these reasons:

"The provisions of the second section, being wholly free, those of the third can be applied to them without touching the very express provisions of the first. This will leave all the words to have some operation, and somewhat reconcile what would otherwise be a plain contradiction."

In this we are unable to concur. The provisions of the second section are wholly independent of those of the first and third, and apply to all convicts who have "heretofore or may hereafter" vio

late any prison regulations; thus distinctly specifying the class to which its provisions shall apply.

The single question is, which of the two repugnant clauses ought to be rejected? One rule of construction is that, where there is irreconcilable conflict between different clauses of the same statute, the last in order of position must control. Another is that the clause which is directed especially to the particular subject must prevail, as regards the subject, over those mentioning it incidentally. The authorities illustrating the application of these rules are collected in Vol. 26, Am. & Eng. Enc. of Law (2d Ed.) 619, 620.

The first section of the act treats of the general subject and conditions of commutation to prisoners. The third section relates exclusively to the time when the act shall go into operation, and the prisoners to whom it shall not apply. It exempts from the general class those prisoners serving under any prior sentence, and, to emphasize the meaning of Congress that the privileges of the act shall not extend to the exempted class, expresses that meaning twice, and in different terms. As the third section is more detailed, and more carefully expressed than the first, in respect to the prisoners who shall be entitled to the commutation, it must be presumed that it expresses the more matured judgment of the legislative mind upon that particular subject.

The repugnancy between the two sections would not exist if the words "has been or" had been omitted in the first section. Apparently section 3 was inserted as supplementary to the bill as originally framed. It is probable that when the third section was added these words were inadvertently retained.

We conclude that the relator was not entitled to the benefit of the act, and that the order of the court below was erroneous. The order is accordingly reversed.

CARY MFG. CO. v. DE HAVEN.

(Circuit Court of Appeals, Second Circuit. May 24, 1905.)

No. 213.

PATENTS-DAMAGES FOR INFRINGEMENT--BOX-STRAP REEL.

A decree awarding nominal damages only for infringement of the Cary patent, No. 403.247, for a reel for metal box-strap, affirmed on evidence showing that the reel was of slight value or utility; that in selling boxstrap both complainant and defendant mounted the coils upon reels, for which no charge was made; and that the strap was salable independently of the reels.

Appeal from the Circuit Court of the United States for the Eastern District of New York.

For opinion below, see 88 Fed. 698.

A. G. N. Vermilya, for appellant.

W. P. Poeble, Jr., for appellee.

Before WALLACE, LACOMBE, and TOWNSEND, Circuit Judges.

WALLACE, Circuit Judge. The decree appealed from adjudged that the defendant has not infringed complainant's patents for an improvement in box-strap, and, as to those patents, dismissed the bill. It also adjudged that defendant had infringed complainant's patent No. 403,247, for an improvement in a reel for box-strap, and awarded compiainant nominal damages for such infringement, and an injunction restraining future infringement.

The complainant has appealed from so much of the decree as awards nominal damages only against the defendant for the infringement of the reel patent, and, by its assignments of error, insists that the decree was erroneous in refusing to it a recovery of profits and damages in a substantial amount.

During the period of infringement-from August, 1893, to September, 1898-the complainant and defendant were competitors in the business of making and selling iron box-strap, an article used for strapping packing boxes, which is made of sheet metal, and wound into a coil, from which the user cuts the desired length to fit the box to which it is to be applied. For convenience in handling it, the coiled strap is commonly put up in a frame or reel. The complainant and defendant usually sold the strap coiled in the reels to their customers, making the price for the strap only, as the cost of the reel was a trifling item. During the period of infringement the defendant made and sold 31,000 of the patented reels having the strap coiled thereon, but, as he made no charge to his customers for the reels, he did not make any profits upon the reels; and, as the complainant did not make any charge to its customers for its reels, it did not sustain any damages by the loss of profits upon them caused by the diversion of its traffic by the defendant.

The complainant insists that the strap could not have been sold without the reels, and for this reason that it should have been awarded the profits which the defendant made upon the strap sold by him during the period of infringement, together with the damages accruing from loss of complainant's profits upon diverted sales of strap during that period. If the proofs had shown that the strap could not have been sold except with the patented reels, the contention for the appellant would be supported by the authority of cases like Wales v. Waterbury Manufacturing Co., 101 Fed. 126, 41 C. C. A. 250. But the proofs do not show this, and not only the direct evidence, but also the presumptions deducible from the small utility of the patented invention, authorize and require a contrary conclusion. That the strap was salable independently of the reels is shown by the fact that during the period of infringement and subsequently the defendant sold it in considerable quantities without reels, as well as with reels which did not infringe the patent. The proofs also sustain the finding of the master upon the accounting that the complainant sold it during the period of the infringement "both with and without having a reel or frame attached, and made no advance of price in the box-strap by reason of attaching the patented reel." While the evidence shows that the purchasers of strap generally wanted the reeled strap, it does not show that they cared particularly whether the strap was mounted up

on a reel containing the invention of the patent, or upon a reel or frame which did not contain the invention. The necessity for a frame or reel arose from the elastic nature of the strap. As the strap is cut from sheet metal in long strips (some 300 feet long), it requires to be put in compact form for handling and transportation, and consequently is usually wound in a coil; and thus it requires. to be held in place, or it will partly uncoil and fall apart. Before the patented reels were made the coiled strap was sold by the patentee in a shallow circular box, made of thick paper, having a slit in the edge to permit the strap to be pulled out. Manifestly, when the strap was put in such a box it could be readily transported and conveniently used; and there is no reason to doubt that, if purchasers had been offered it at a reduced price, they would have bought it freely, and probably as freely when put up in that form as if it was mounted in the patented reel.

The patented reel is a frame consisting of a metal band bent upon itself so as to form two arms, one extending across the front and the other across the rear of the coil of box-strap, and having a spool mounted upon a metal peg between the two arms. The arms have holes at their upper and lower ends-one for the insertion of the metal peg on which the spool is mounted, and the other for inserting a nail or peg for fastening the frame against a post or other convenient support. When the strap is coiled around the spool, the spool is placed in the frame, and the metal peg is inserted. The coiled strap will then be held in place for transportation, and when it reaches the user he can nail it against a wall or post, cut off a desired length, and when that length is cut off the rest of the coil remains compact. The only novel feature in this device was the resiliency of the arms. This enabled them, by driving in the nail at the upper end, to operate as a brake to prevent the strap from being reeled off too rapidly. Whether this theoretical advantage ever attracted a purchaser does not appear. No witness speaks of it as influencing his purchase, and, so far as appears, no user ever discovered its practical value. In considering the question of the validity of the patent, the learned judge of the court below said: "The patent is an extremely narrow one. It would not be infringed by defendant's device if the latter had its arms rigid against compression, so that they could not act as brakes." If the arms of defendant's device had been made of sheet metal a trifle thicker than that used, it would not have infringed the patent.

The theory that an invention of this insignificant value was so indispensable to the users of box-strap that no purchasers would have been found for the strap unless it was put up in the patented reel is preposterous. While it may be conceded that the patented reels helped to sell more or less of the box-strap, the proofs utterly failed to show that the strap would not have been marketable except as an adjunct to them.

The judgment is affirmed, with costs.